Martin v. Long
| Decision Date | 16 January 1923 |
| Citation | 92 W.Va. 624 |
| Court | West Virginia Supreme Court |
| Parties | Lot Martin v. Charles Amos Long. |
While one is under sentence to confinement in the penitentiary for more than one year, but the execution of the sentence is stayed by writ of error issued by this court and the prisoner is released on bond pending the prosecution of the writ of error, a country court has no jurisdiction, under section 11, chapter 163, Barnes' Code, 1918, to appoint a committee to take charge of the prisoner's estate, and an appointment made under such circumstances is void. (p. 627).
No appointment of a committee for such prisoner's estate can be made under that statute until the prisoner's term of imprisonment under the sentence has actually begun, (p. 628).
Until the prisoner's term of imprisonment has actually begun, his right to manage his property and to make contracts is unaffected by such sentence, (p. 630).
A sentence to the penitentiary for a term of years does not make void a contract duly executed by a convict before he is imprisoned under the sentence and while execution of the judgment of conviction is stayed on writ of error to the Supreme Court of Appeals, (p. 630).
(MoGinnis, Judge, absent).
Certified from Circuit Court, Wetzel County.
Action by Lot Martin against Charles Amos Long. An order overruling demurrer to plaintiff's declaration certified for review.
Affirmed.
Thayer M. Mclntire, for plaintiff.
This is an action of assumpsit to recover $1,500 for services in cutting and hauling timber for the defendant under a written contract; a demurrer to plaintiff's declarations having been overruled, the trial court certifies certain questions arising on the sufficiency of plaintiff's declaration for review.
The facts as they appear from plaintiff's amended declaration are substantially as follows:
At the October, 1919, term of the circuit court of Wetzel County, Charles Amos Long, the defendant here, was adjudged guilty of murder in the second degree and was sentenced to serve 12 years in the penitentiary. This sentence was immediately suspended and defendant was released on bond, pending his application for a writ of error. A writ of error was awarded by this court and on September 1, 1920, during the pendency of the case here, plaintiff, Martin, entered into a written contract with defendant in his own proper person and with John M. Lowe who was acting as defendant's committee, whereby plaintiff for a stipulated consideration, to be paid monthly, agreed to cut and haul certain timber growing on the land of the defendant. This contract was aptly drawn and was regularly signed by the three parties in their proper capacities.
Owing to changes in the manner of cutting and hauling the timber, which were insisted upon by the defendant, and through no fault of plaintiff, plaintiff was unable to complete the cutting and hauling in the period named in the contract but did complete the work during the month of March, 1921.
On September 7, 1921, this court reversed the judgment of the circuit court imposing the 12-year sentence upon defendant, set aside the verdict and remanded the cause for a new trial. The new trial so granted, resulted, in October, 1921, in an acquittal and the prisoner was discharged.
The foregoing is but an outline of the facts alleged in the declaration, which contains a full recital of the contract and the circumstances surrounding its performance, but as no issue of fact is here involved, we find it unnecessary to detail the circumstances further. Plaintiff alleges full performance on his part and the failure of the defendant to pay for the services rendered. Defendant demurs to the declaration. His grounds for demurrer are the questions certified.
Though defendant files no brief here, we understand that he defends upon the theory that his civil rights being sus- pended between the dates of his conviction and the final judgment of this court on the writ of error, no legal responsibility attached to him by reason of his joining in the contract; that plaintiff's contract having been entered into with the committee, the latter should have been joined in the action; and that the committee having exceeded its authority in attempting to dispose of defendant's growing trees, the contract fixes no legal obligation on the defendant or his property.
The solution of these questions depends upon the civil status of the defendant at the time of his entering into the contract wdth plaintiff. He was under conviction for a felony, but had been released on bond pending the prosecution of the case in this court, and, presumably, a committee had been appointed by the county court to administer his real and personal estate. Two theories may be suggested to sustain defendant's position of civil irresponsibility at that time. First, the common law doctrine that a person convicted of a felony is civilly dead; and, second, the effect of section 11, chapter 163, Barnes' Code, 1918, which authorizes the appointment of a committee for the estate of one sentenced to the penitentiary for more than one year.
We find little difficulty in disposing of the first proposition. Whatever may have been the status of such a person at the common law and we find many expressions even in the early cases which seem to limit the application of the civilitur mortuus idea to particular cases we think our Constitution (Art. 3, Sec. 18) and statutes (Sec. 4, Chapter 152, Barnes' Code, 1918,) abolishing corruption of blood and forfeiture of estate on conviction of a felony, plainly preserves the property rights of one so convicted. Haynes v. Peterson, 125 Va. 730, 100 S. E. 471, 6 A. L. R. 1456; 2 Kent, Commentaries, page 386. So, we hold with Minor (2 Minor, Real Property, sec. 1096) that, unless modified by other statutory provision, "One attainted may not only take, but may hold and dispose of lands as freely as others." As heretofore stated, however, section 11, chapter 163, Barnes' Code, 1918, relied upon by defendant, has a distinct application to the matters in qesu- tion. This section, which has been but slightly modified since its adoption from the Virginia Code (Code of Va. 1860, ch. 163, sec. 14) reads as follows:
"When a person is sentenced to confinement in the penitentiary for more than one year, the estate of such convict, if he have any, both real and personal, shall, on the motion of any party interested, be committed by the county court of the county, in which his estate or some part thereof may be, to a person selected by such county court, who, after giving bond before the said county court in such penalty as said court may prescribe, shall have charge of said real estate until such convict is discharged from such confinement.''
We must now answer the second proposition suggested above. Was this defendant deprived of his civil rights by virtue of this provision? We must consider defendant's situation when this contract was made. He was convicted of a felony, sentenced, released on bond, pending action here on the writ of error, and a committee was acting for him. He was not in actual confinement, yet a committee had undertaken to manage his property. We find little authority to enlighten us on the status of one in his peculiar situation. The nearest approach to it is a case much relied upon by plaintiff in his brief, Harmon v. Bowers, 78 Kan. 135, 96 P. 51, 16 Am. & Eng. Ann. Cas. 121. Harmon was sentenced to the penitentiary, April 12, 1904, and. appealed to the Supreme Court where the judgment was...
To continue reading
Request your trial
-
State ex rel. Miller v. Sencindiver
...other statutory provision, 'one attainted may not only take, but may hold and dispose of land as freely as others'." Martin v. Long, 92 W.Va. 624, 115 S.E. 791, 792 (1923).6 See also Strickland v. Wysowatcky, 128 Colo. 221, 250 P.2d 199 (1952); Smith v. Greenburg, supra 218 P.2d, at 519; An......
-
Craigo v. Marshall, s. 16613
...to bring his own actions. See Merchant's Adm'r v. Shry, 116 Va. 437, 82 S.E. 106 (1914). We spoke to this issue in Martin v. Long, 92 W.Va. 624, 627, 115 S.E. 791, 792 (1923), where a convicted felon made a contract while out on bail. In a suit for breach of contract, he contended that the ......
-
Nibert v. Carroll Trucking Co., 10619
...for one year, or more, to sue occurs only when his confinement begins and continues only while such confinement lasts. In Martin v. Long, 92 W.Va. 624, 115 S.E. 791, this Court held that until a convict's term of imprisonment has actually begun his right to manage his property and to make c......
-
State ex rel. Acton v. Flowers, 12918
...145 W.Va. 670, pt. 1 syl., 116 S.E.2d 385; Nibert v. Carroll Trucking Company, 139 W.Va. 583, pt. 1 syl., 82 S.E.2d 445; Martin v. Long, 92 W.Va. 624, 115 S.E. 791. The respondents Nelson Jennings and Joyce Jennings have filed a motion to dismiss Edwin F. Flowers, State Commissioner of Welf......